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A few comments on the Supreme Court opinion on Conservatorship of E.B. (2020) 45 Cal.App.5th 986
This section shall address some contentions that pro treatment advocates may hold with this opinion’s points. Another will review the case in its entirety. Most pro treatment advocates aver that LPS and criminal defendants are not similarly situated as the basis for court involvement differs; one being for the punishment and the other for treatment. However, as recent court cases have come out, there is a shifting of some aspects of criminal due process rights being afforded to LPS conservatees. For each appeal, when applying the equal protection analysis, the appellant need not show whether conservatees are similarly situated for all purposes, but whether they are similarly situated for purposes of the [specific area of] law challenged. People v. Valencia (2017) 3 Cal.5th 347, 376. Simply stated, through the process of various appeals small aspects of criminal law may or may not be integrated into LPS practice. It is done issue by issue slowly over a period of years. Now turning to this case of whether LPS Conservatees should be considered similarly situated to NGRI’s (which for many pro treatment advocates is too close to criminal defendants) proponents against this argue that the historic purpose of the privilege against being called as a witness has been to assure that the criminal justice system remains accusatorial, not inquisitorial”. LPS Conservatorship hearings are not “accusatorial”. However, many patient right’s groups such as DRC contend that LPS Conservatees face risk of indefinite state sanctioned confinement as LPS Conservatorship can be renewed annually. Conservatorship of Roulet, 23 Cal.3d 219, 152 Cal. Rptr. 425, 590 P.2d 1 (Cal. 1979) -“an unbroken and indefinite period of state-sanctioned confinement. "The theoretical maximum period of detention is life as successive petitions may be filed” Pro treatment advocates may cite that this almost never happens but in this specific opinion the Supreme court cites to county data that suggests In San Francisco, for example, almost 38 percent of LPS conservatorships, excluding Murphy conservatorships, had been extended for 10 years or more as of December 2018. (San Francisco Analyst’s Report, supra, at p. A-9.) An additional 23 percent had been extended from five to 10 years. (Ibid.) Pro treatment advocates may rebut and state that legal authority ought not base opinions that have binding effects across all counties on just one county’s data. They could possibly state that any extension of criminal privileges to an area outside the criminal justice system, LPS Conservatorship, would contravene both the language and purpose of the privilege as the privilege was intended to be used in the scope of the original legal area it appears in. However, the Supreme Court had decided on this and stated that “Thus, in practice, traditional LPS conservatorships can impose substantially the same restraint on liberty as involuntary commitments connected to criminal proceedings”. Because we cannot change their opinions on this issue at this time, pro treatment advocates must turn to the second prong; showing whether harmless error applies. There are many nuances as to whether Federal harmless error standard applies under Chapman v. California (1967) 386 U.S. 18, 23–24 or state law harmless error standards under People v. Watson (1956) 46 Cal.2d 818, 837 applies. However, for most LPS appeals they rely on People v. Watson which weighs the evidence against the error made and determines whether it was reasonably probable the appellant would have obtained a more favorable outcome had the error not occurred. Treatment advocates should be aware that showing that in the totality of the circumstances, the conservatee’s testimony would not have materially affected the outcome of the trial as the doctor’s testimony and family statements evidence a long history of grave disability, noncompliance, and repeat hospitalizations. In the original trial, the conservatee in this case was gravely disabled enough that both the appellate court and the trial court found that the harmless error standard was met as the conservatee would have been found gravely disabled in light of his compelled testimony. However, the case was heard all the way up to the CA supreme court as it directly contravened Conservatorship of Bryan S. (2019) 42 Cal.App.5th 190, 19 which had been the primary authority on this subject matter until now. Also other issues may be heard on appeal on the basis that despite LPS Conservatorship being terminated by the time the appeal is heard, the issue at hand is capable of repetition yet evad[es] review.
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A quick note on SB 1416
(A) A condition in which a person, as a result of a mental health disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal or medical care, or self protection and safety. Revision A person is unable to provide for their basic personal needs for medical care or self protection and safety when the person is at risk of substantial bodily harm, dangerous worsening of any concomitant serious physical illness, significant psychiatric deterioration, or mismanagement of their basic needs that could result in substantial bodily harm. So this amendment lays out new exceptions from the current additions to proving current grave disability laid out in Conservatorship of Guerrero (1999) 69 CA4th 442; Conservatorship of Walker (1989) 206 CA3d 1572; and Conservatorship of Benvenuto (1986) 180 CA3d 1030. However, counsel need be mindful that Conservatorship of Murphy (1982) 134 CA3d 15 still stands in the face of this new revision as likelihood a conservatee will return to grave disability in the future is insufficient ground for LPS Conservatorship. However, it would be beneficial to adjust the legislature to include a calculated perceived likelihood of future relapse in a future senate bill. Back to the issue of determining grave disability from neglecting a serious physical illness due to mental illness, one could make the argument that grave disability and danger to self can ascertained from medical neglect. Since most advocates would contend cite to Conservatorship of Smith (1986) 187 Cal.App.3d 903 and state that bizarre or eccentric behavior is not enough to deprive a patient of their civil liberties. However, counsel should distinguish from Conservatorship of Smith and cite to Doe v. Gallinot (C.D. Cal. 1979) 486 F. Supp. 983 which stated that the “standards for commitment are constitutional only if they require a finding of dangerousness to others or self”. Citing in part from Doremus v. Farrell (D.Neb. 1975) 407 F.Supp. 509, 515, the Doe v. Gallinot court cited that “the threat of harm to oneself may be through neglect or inability to care for oneself”. Counsel needs to distinguish from “bizarre or eccentric behavior" and make a showing per Conservatorship of Smith and Doe v. Gallinot that the patient’s inability to treat and monitor a severe health condition has rendered the patient unable to fend safely for food and therefore is a danger to self and currently grave disabled. Their decision not to “take care” of their medical needs does not stem from a voluntary choice or alternative lifestyle. They must make the nexus between the patient’s frank psychosis and their inability to care for their medical needs. For example counsel could show that because the patient hears voices or suffers from delusions, they are internally preoccupied with these voices or delusions, and are unable to in any way attend to their basic medical needs. When asked the patient perseverates on these delusions and is unable to voice or explain the importance of taking care of one’s own needs. Therein lies a case for showing that the patient is not choosing to not attend to his needs, he is incapable of doing so. Through this showing of implicit harm via neglect, counsel can further argue that neglect will result in the patient ending up in the ER or ICU for decompensating medical condition, as would a patient who is being treated for self-injury or a suicide attempt. 4/16/2022 LEGAL AUTHORITY UNDER GANDOLFO AND AZZARELLA AS FOUNDATION FOR DENYING WRITS POST P -CON.Read NowLEGAL AUTHORITY PER GANDOLFO AND AZZARELLA AS FOUNDATION FOR DENYING WRITS POST P -CON.
The two cases that our counsel relies on when they discuss denying writs after the P-con hearing are In re Gandolfo, 36 Cal. 3d 889, 686 P.2d 669 (1984); In re Azzarella, 207 Cal.App.3d 1240, 254 Cal. Rptr. 922 (Cal. Ct. App. 1989). Again, This is an ongoing issue as Disability Rights California and Jewish Family Services tells patients that they can file for a writ post P-con establishment but when the conservatees request it, their attorneys say no and verbal “fights” ensue. Per CJER benchbook, Habeas relief is not ordinarily available to challenge status as a conservatee, placement, or the conservator’s powers; the hearings built into the LPS Act will generally be adequate for resolving these questions. In re Gandolfo (1984) 36 C3d 889, 899 n5, 206 CR 149. Habeas relief, however, might be appropriate if the conservatee is illegally deprived of liberty, or the statutory review mechanisms are not working properly. 36 C3d at 898. However, if we turn to the actual language of In re Gandolfo it first cites that unreasonable denial of [certain] freedoms essential to welfare of a conservatee under the Lanterman-Petris-Short Act might be proper subject of inquiry on habeas corpus. West's Ann.Cal.Welf. & Inst.Code § 5000 et seq. A conservator may limit a conservatee’s activities in a reasonable manner, for their own benefit, but cannot, without good reason, deny such freedom as is essential to her welfare thus begging the question of whether LPS Conservatees may be allowed to petition for writ of habeas corpus. Some courts argue that an LPS Conservator is not arbitrarily confining or limiting the freedom of the conservatee upon his own initiative or own benefit. The conservator is acting per the instructions of the mental health court that assumed jurisdiction over the conservatee, and the court has given the conservator such limited instructions after a full hearing (with due process) and the court had decided that such limitations are the proper course of conduct and in the best interests of the conservatee. Additionally, aside from the non-punitive nature of LPS proceedings, the LPS Act, has established several safeguards following the initial appointment of a LPS conservator. The code provides procedures for conservatees to challenge the validity and conditions of their conservatorships:
Based on this, Gandolfo held that habeas corpus is not a proper remedy to review errors which could be raised on appeal or by other appropriate remedies [such as the ones listed above]. Additionally courts could cite to this opinion and state that because the “precise degree of restriction appropriate to a patient may change from day to day or week to week” and changing the code to allow habeas corpus would only invite a flood of cases which would wreak havoc on the “continuing jurisdiction” of the mental health courts. Now in a dissenting opinion, Bird J cites several contentions where writ of habeas corpus would be warranted. First there is some editorialization, “similarly situated persons are permitted unrestricted resort to simple and effective habeas corpus procedures … but LPS conservatees are required to use burdensome and infrequent proceedings in the conservatorship court to challenge the restrictiveness of their confinement. The great writ of habeas corpus should not be so limited”. Now first as in criminal courts, LPS conservatees would be entitled to habeas corpus relief if “unreasonable consequences should ensue” because of the limitations of the statutory review mechanisms. This would namely be a situation where the hospital conditions are so severe that it endangers the health and safety of a conservatee (e.g., overcrowding, physical abuse, lack of medical treatment) or which deprive a conservatee of fundamental rights (e.g., restrictions on visiting, or receipt of mail, or religious freedom). These are generally outside of the purview of a status review hearing or a re establishment hearing so a writ would allow a conservatee to address those issues rapidly.
Outside of dangerous conditions, the dissenting opinion also addresses that a person suffering from grave disability due to a mental disorder is more likely to experience rapid improvement under treatment than a person with a developmental disability which by definition is “expected to continue, indefinitely”. He also notes that other instances where habeas corpus is allowed, the defendant’s alternative legal remedies were not limited by time restrictions on the frequency allowed per year. Browne v. Superior Court, supra, 16 Cal.2d at p. 601, 107 P.2d 1. This he alleges is unique to LPS Conservatorship. The dissenting opinion also lays out colloquially that LPS Conservatees suffer from mental illness and because most lay people have considerable difficulty in understanding and exercising their rights to petition a court for habeas corpus relief, the simplest of procedures may present an insurmountable challenge to a person with severe mental illness. Doe v. Gallinot (9th Cir.1981) 657 F.2d 1017, 1023. It appears that in the dissenting opinion there may be a future push to make habeas corpus relief more informal as LPS Conservatees should be aligned with developmentally disabled adults who currently may initiate habeas corpus proceedings by making a simple request for release to a hospital staff member as a nonverbal indication of desire to leave is treated as a request for release and appropriate forms filled out.
In re William M.W. (2019) 43 Cal.App.5th 573
Discovery and Juvenile Dependency Proceedings Discovery is a frequently overlooked aspect of dependency work because everyone receives the social worker's report before the detention and the jurisdictional hearing and may not have time to adequately consider what witnesses will testify to at these hearings. Generally, the evidence in the report is focused on supporting the information that will support a finding of dependency. The information in the social worker's report is generally a summary of other people's statements (Sanchez issues) and it may not be entirely accurate as the social worker may have mis-represented any information or did not understand the context of the statement. On filing the petition, the petitioner must promptly make any police report or other report accessible for inspection and copying by the parent and their counsel. Cal Rules of Ct 5.546(b). The petitioner must also disclose any information or evidence that is favorable to the parent. Cal Rules of Ct 5.546(c). Presumably this also falls under Model Rules of Conduct 3.3. California Rules of Court 5.546 states that discovery should be liberally construed in favor of informal disclosures, absent a showing that privilege or other good cause exists to not disclose. Discovery must be completed in a timely manner to avoid unnecessary delays. A note: A juvenile court may adapt “local” rules that compel disclosure of witness lists, despite the work product privilege when the moving party shows that it would expedite a hearing, “facilitate court business, and fulfill more effectively the duty imposed on it”. In re Jeanette H. (1990) 225 CA3d 25, 34. If discovery is not provided immediately as required by Cal Rules of Ct 5.546(b)–(c), a party can request the materials or move for disclosure if the request is refused on privilege grounds (?). Applying the Civil Discovery Act to dependency proceedings. In re William M.W. (2019) 43 Cal.App.5th 573 The juvenile court is not mandated to order discovery at no cost for parents in dependency proceedings but it holds the discretion to do so when an indigent parent’s may be prejudiced by the financial barrier. Both parents appeal from the juvenile court’s refusal to order the department to deliver requested discovery electronically and waive all costs in advance of a contested review hearing. Parent’s counsel filed a joint motion to compel discovery. They moved to compel the juvenile court to order that the department provide copies of discovery to both parents at no cost. Additionally both parents sent memos to the department and asked that the discovery be either faxed, provided on a flash drive, or printed. The department refused to comply citing it had fulfilled its duty by making discovery available when it notified parent’s counsel that discovery would be ready for review and once counsel identified the documents they wanted duplicated, the department would provide copies at a rate of $.10 per page. Parents’ counsel was notified that they would be allowed to [presumably come in] and take pictures of the documents or copy them using their own materials without charge. The department contended that any order compelling it free of charge to parents was foreclosed by Welf & I C because no explicit statute authorizes such an order and it would violate separation of powers principles. On a hearing regarding this discovery matter, parents’ counsel asserted that free discovery was required citing constitutional principles of due process and equal protection for indigent parents. The department maintained that its obligation does not extend to copying and production of discoverable materials; just making them available for parent’s counsel. The trial court denied the discovery motion and opined that it was denying the request because it believed the court would “be acting in excess of its authority given the current state of the statutory law”. The court also noted that the department had already made the discovery available, but parents’ counsel chose to decline to go in person and copy them. Parents filed their timely notice of appeals. The court of appeal provides it opinion in which it reversed on the following grounds: Per California Rule of Court 5.546 “Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.” (In re Chantal S. (1996) 13 Cal.4th 196, 200.) Prehearing discovery is primarily regulated in the juvenile court by rule 5.546.3 The rule states it is to be “liberally construed in favor of informal disclosures, subject to the right of a party to show privilege or other good cause not to disclose specific material or information”. Additionally within these rules of court, are several provisions which authorize the juvenile court to regulate the discovery process as needed. The parents assert that the department’s open file policies run contrary to juvenile dependency discovery procedures as it is burdensome and unreasonable for a parent’s counsel to go in person and thus at odds with the department’s duty to disclose discovery under rule 5.546. Additionally, they clarify that “disclosure” within the scope of rule 5.546 should mean the production and delivery of discoverable material at no cost. However, the appellate court found that the department made a better argument. Rules have the force of dependency statute behind them but a court can pomulagate them to the extent that carrying out the rule shall not be inconsistent with legislative intents and constitutional provisions. In so far that the administration of these rules comport with existing statutory authority, the rules must be construed so as to implement the purposes of the juvenile court law. Rule 5.501(c)(2). The words in a statute given their ordinary and usual meaning should be also construed in their statutory context. In this construed in the over arching scheme of dependency law. If the plain, commonsense meaning of a statute’s words is unambiguous, the plain meaning takes precedent. In determining what the plain meaning is of given words in a statute the meaning must be construed in a context relating to the same over bearing subject matter and should be construed to best harmonize with the import of the dependency act. For words with more than one interpretation a court may consider various “extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute”. Catlin v. Superior Court (2011) 51 Cal.4th 300, 304. Now applying this logic to Rule 5.546 the plain and ordinary meaning of the word disclose is “to open up,” “expose to view,” “to make known,” “to reveal in words,” or to “divulge”. Drawing from criminal discovery statute that construes “disclose” to mean affording a defendant an opportunity to examine, inspect, or copy the discoverable items. This appellate court found that there was no reason to construe disclose any differently nor was there a need to interpret Local Rule 5.506(a)’s use of the same word as meaning a different level of disclosure. Rule 5.546’s wording indicates that they intended that disclosure was not synonymous with document production. The rule expressly permits the department to either “deliver” a report or make them “accessible for inspection and copying”. (Rule 5.546(b).) Drawing from the wording of Rule 5.546, “disclosure” under the rule indicates a broader meaning that includes the option of making materials available for review or providing paper or electronic copies. Speculation Sunday
The threshold question in a petition under Prob C §2357(b) (authorizing conservator's consent) and §2357(i) (compelling conservator's consent) is whether the conservatee has the capacity to give informed consent to the specified medical treatment. Perhaps the law should better define “specified medical treatment” to mean that a conservatee must demonstrate that they have the capacity to give consent only for that particular treatment. The conservatee need not establish that they have capacity for all types of medical treatment drawing from People v. Brown, supra, 54 Cal.4th at p. 328. It appears, that under Prob C §2357subd (i), medical capacity should be its own hearing as this § is not governed by the other provisions under Prob C §2357. It seems that the court would have to find that the conservatee lacks capacity before it could order the conservator to obtain and consent to specified medical treatment. The question remains does the court need to hold a separate evidentiary hearing to find that the conservatee lacks capacity to consent to more invasive procedures such as birth control. This seems to beg the scenario when the conservatee brings forth a petition under Prob C §2357(i) alleging that the conservatee wants the conservator to obtain and consent to a specified medical treatment but the conservator refuses to act. These petitions are very rare but it seems that this has arisen in the case of birth control. Prob C §2357 subd (i) states: Upon petition of the conservatee the court may order that the conservator obtain consent for said specified medical treatment to be performed upon the conservatee [or presumably find good cause for denial]. Probate Code §813 defines informed medical consent capacity. In regards to Prob C §2357(c) it is preferable to have multiple declarations should be submitted to show the court that the recommended treatment is deemed appropriate by more than one physician. If this decision was made out of concern for welfare for the minor, perhaps in the absence of a very compelling reason it would best for the minor to be born and then allow the juvenile court to determine whether a dependency petition filed and jurisdiction taken over the minor pursuant to Welf & I C § 300 (b). Work in Progress..... Mentally ill patients had little legal protection from maltreatment and indefinite hospitalization until the early ______century. They were warehoused in state hospitals with little due process protections and evidentiary protections. However, in the 19___’s when the LPS act was passed and many of the state hospitals closed down, many people state that the passage of this act did “do good” as it conferred new critical rights to patients but at the cost of severely reducing services for mentally ill consumers and obtaining lifesaving court ordered treatment very difficult. Some would say that the ball swung in the opposite directions as the court system overcompensated for years of no due process protections. Additionally due to the passage of the Bronzan-Mccorquodale act, which simply stated granted individual counties to administer LPS policies as they saw fit leading to disparate court practices all over the state. However, among pro treatment advocates, there is a general consensus that these services were and still are inadequate to meet the needs of gravely disabled severely psychiatrically decompensated patients.
ALIGNING MENTAL HEALTH PROCEEDINGS WITH DEPENDENCY PRACTICES First many consider the LPS Conservatorship scheme to be too permissive and broad. The LPS scheme as it stands now focuses on the need to:
Many pro treatment advocates believe that this current framework is not providing patients with enough treatment options. They contend that the current framework focuses on the patient’s rights over what is in their best interest. Based on parents, caregivers, and relatives opining that from years of watching their loved ones decompensate and the courts safeguarding their civil liberties rights over their best interests, there may be a beneficial switch to considering treatment from the scheme of the best interest standard as currently adopted by the dependency system. In construing mental health legislation, we must avoid any construction that would produce an unreasonable, absurd, or ridiculous consequence for the defendants. However, given ample evidence that the current statutory scheme, it is clear that the current scheme is failing many mentally ill persons and thus “well reasoned” changes would likely produce reasonable positive outcomes. Mental health legislature as it stands does not intend for MH trial judges to discharge a patient, wait helplessly until the next psychiatric decompensation occurs, and the patient ends up in jail, dead, or homeless. Most expert witnesses will opine that when dealing with severe mental illness in a patient suffering from anosognosia it is not a matter of if, but when the next episode occurs at the detriment of the patient’s health and safety. Best Interest Standard Defined for Mental Health The legislature could cite the fundamental premise that underlies the purpose of mental health law is the protection of the welfare and best interests of the mentally ill patient. Accordingly, the purpose of any mental health involuntary treatment hearing shall bear in mind first and foremost the need to protect the patient’s best interests and the MH court’s inquiry shall be consistent with the focus on the patient’s best interest albeit with a preference towards voluntary outpatient community care and treatment. Since the paramount purpose underlying mental health proceedings is the protection of the patient’s safety, relative/parental/caregiver involvement shall not represent a competing or adversarial interest in court proceedings. Drawing from In re Jason L. (1990) 222 Cal.App.3d 1206, 1214. Although the court’s interest in safeguarding the patient’s due process rights shall always remain a liberty interest that may not be interfered with in the absence of a compelling state interest; the best interest of a mentally ill gravely disabled patient incapable of caring for his basic needs shall constitute that countervailing “compelling state interest” that the state of California not only bears the right, but a duty, to protect”. Based on this, mental health courts should be afforded the broadest possible scope of discretion in making decisions, allowing evidence, and conducting proceedings (Welf & I C § 362) that best promote the best interest of the mentally ill patient. Welf. & Inst. Code, §§ 300.2, 366.26 (h). If there is a finding of grave disability, the patient, by Welf & I C § 5008.1 (h) definition is not assumed to have the capacity to take care of their basic needs of food clothing and shelter, and the State of California must play its role as parens patriae. Patient’s rights groups like DRC may decry and state that this “best interest of the patient standard” is unconstitutionally “vague” and “overbroad”. However, if Conservatorship of Chambers (1977) 71 Cal. App.3d 277, 286 upheld that the definition of grave disability is neither vague nor overbroad, then the same should apply for best interest standard. While the “best interest” may be “an elusive guideline that belies rigid definition” the legislature should clarify it to meet the reasonableness test in which a reasonable person will be able to reason that it means the “purpose is to maximize the patient’s opportunity to return into society as a stable well-established functional person”(?). Mental health proceedings whether under CARE court, AOT, or LPS Conservatorship, are not intended to serve as indefinite court proceedings. Involuntary treatment (or conservatorship) with its attendant mental health case plan and treatment services, shall bear in mind that the first priority when proceedings are commenced is a return to society and termination of court involvement due to stability and return of facilities. The mental health court must balance private interests, government interests, risk of error, cost to the patient, and cost to the public as a whole. That is why this integration of dependency and LPS statute must be considered. MH court/MH agency Absolute Right to Dismiss an Involuntary Treatment Petition/Case over the Objection of Other Parties/Relatives One of the biggest complaints from family members and relatives is that the court or the mental health professionals unilaterally decide to terminate a petition for involuntary treatment or “hear only one side” before closing out a petition for involuntary treatment despite family/other evidence of grave disability. Kaplan v Superior Court (1989) 216 CA3d 1354, 1360. However loosely drawing from County of Los Angeles v Superior Court (Kennebrew) (2013) 222 CA4th 434 and more closely Allen M. v Superior Court (1992) 6 CA4th 1069, when the mental health agency wishes to dismiss an involuntary treatment petition it SHOULD notify all interested persons (parents and relatives) in order to afford each party, the opportunity to object and be heard (due process). Current statute states that the mental health agency may initiate a petition for involuntary treatment but the same code should not confer unilateral discretion to dismiss a petition. Once the health agency submits a petition, it has exercised that discretion. It cannot invoke and then divest the court of jurisdiction unilaterally. Drawing from Welf & I C § 350, (c) at any hearing where the mental health department has not carried its burden of proof required to dismiss a petition, additional parties “may proffer additional evidence without first having reserved that right” before any order is finalized. The mental health court’s refusal to permit other parties to present evidence shall be deemed inconsistent with the directives of the Welf & I C which is to provide treatment of the patient and protection to the public; ie to fully protect the best interests of the patient. The court shall view the legislative scheme as affording other parties a degree of additional latitude in presenting additional pertinent information to the court so as to assure the most appropriate treatment decision for the patient. Other parties such as DRC may allege that additional parties will "step into the shoes" of the mental health agency is a misplaced. By presenting allowing additional evidence, other parties do not become “the prosecutor”. They would simply be ensuring the court has considered all relevant and important evidence that may not make it into the record otherwise. If there is a clear credibility contest, the court may set a live evidentiary hearing to resolve that conflict. There needs to be an additional change to Welf & I C which would permit other parties and their counsel to present evidence and engage in other appropriate acts of representation. Case Plan Defined and Reasonable Services Contest Neither difficulty in providing services nor county funding should excuse the requirement that the mental health agency/court must make a good faith effort to provide reasonable services and a case plan tailored to the patient’s mental health needs and circumstances. Drawing from Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010. The legislature for CARE/AOT court shall be written to include language that dictates that a mental health case plan will be the “foundation and central unifying tool in mental health services”. This case plan shall be intended to ensure the stability and safety of the patient, ensure compliance with treatment providers in providing continuity and appropriate services, facilitate the patient’s safe and long lasting stable return to independent living, and ensure the safety of the public. A written case plan is to be completed, considering the recommendations of the mental health team, within x days of court ordered involuntary treatment. To ensure the patient’s rights are protected, their counsel should have a great deal of input into what services are appropriate and necessary and the court may not order the patient to engage with services until the patient has had a chance to discuss their rights and inputs into the case plan (notice and an opportunity to be heard) with their lawyer and this advisement is made on the record and judicially noticed. For purposes of county resources and limited time, patient objections to any component of the case plan must be made at the trial level and within a set time limit (res judicata will be invoked In re Matthew C., 6 Cal. 4th 386, 862 P.2d 765 (1993). Otherwise objections shall be considered waived for appellate purposes. Because this occurs frequently in mental health cases where the MH agency is unable to complete paperwork or forgets to enroll the patient in a program, the statute should mandate that a mental health caseworker must accurately inform patient of their MH case plan requirements and maintain contact to ensure services are provided consistently and check for any issues. The MH agency cannot use its own failure to ensure that patient is enrolled in correct programs as reason to terminate involuntary treatment services. Clarifying the Court’s Obligation to Release to Community or Order Involuntary Treatment After reviewing the doctor’s report and any other evidence proffered, the mental health court must order the patient released to community unless the court finds by evidence that: Any of the following may apply (written in the disjunctive meaning that each clause does not take precedent over the other)
Lowered Evidentiary Requirements given the Nature of CARE/AOT Court Hearings
DRC and other organizations will give lots of pushback for lowering evidentiary requirements. They may cite to People v. Blackburn (2015) 61 Cal.4th 1113, 191 Cal.Rptr.3d 458, 354 P.3d 268; People v. Tran (2015) 61 Cal.4th 1160, 191 Cal.Rptr.3d 251, 354 P.3d 148 to show that mental health defendants are similarly situated with criminal defendants as LPS Conservatees can due to the possibility of renewable extensions undergo “an unbroken and indefinite period of state-sanctioned confinement” authorized by Welf & I C §§ 5352.1, 5361. Roulet, supra, 23 Cal.3d at p. 224. In fighting this, parents could cite that due process in a civil proceeding “is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings” [Citation] This is because criminal defendants and mental health defendants are not similarly situated as per Penal Code, criminal defendants face punishment whereas mental health defendants are in court for the purposes of treatment and stabilization. J.H. v. Superior Court (2018) 20 Cal.App.5th 530. Again it is very hard to override stare decisis and counsel would need to show that overturning stare decisis should be overruled when (1) there is high "workability" of new (legal) precedent, (2) changes to current precedent are very well-reasoned, (3) the current laws are outdated, and (4) the very high liberty/public interests at stake demand the change. There would need to be amicus curiae for showing the workability of the new lowered precedent (research, scientific literature, etc), why these new changes are well reasoned (better tx outcomes), why the current LPS /MH laws are not working, and reasons why mentally ill gravely disabled patients with anosognosia should be considered similarly situated with dependent minors in need of the state’s protection (cant take care of basic needs due to MI). Due Process Redefined for Mental Health Since a lot of pro treatment advocates are opining that DRC and other advocacy groups are pushing too hard for due process rights for LPS Conservatees/mental health consumers, perhaps a redefining of due process rights within blended dependency/LPS framework would better benefit consumers. The mental health court shall consider a due process violation exists when (1) there is a fundamental undermining of the statutory protections of the patient and (2) not just trial error but abrogation of the statutory right. But due process in the mental health context for sake of the patient’s best interest standard shall not comport completely with criminal due process protections. Rather, all that should be required is that the procedures adopt and comport with fundamental principles of fairness and decency. This would extend to not applying Sanchez to mental health proceedings or full 6th amendment rights to confrontation (unavailable witnesses). It shall due to the special nature of mental health proceedings in that it is a closed universe. Welfare and Institutions Code shall be the leading authority and contained within the Welf & I C shall be the evidence code applicable to MH proceedings. Like dependency proceedings to a certain extent there are other parts of California law may dovetail within it but since we are dealing with severely decompensated patients who are unable to care for their own basic needs so the evidence rules should be construed to allow as much information in as possible so the court can make the best decision on behalf of these patients. So going back to the right to confrontation... should they have a right? Yes of course. Should they have it the same way criminal defense lawyers have it? Perhaps they shouldn’t. Mental health law is a completely separate area of law and should permit special rules. Changed Circumstance Hearings This may be controversial but because mental health services are limited in funding, the court may deny a patient’s petition for dismissal if the patient fails to make a prima facie showing that there are changed circumstances that support a change in previous orders or closing the case. However, to preserve (?) the patient’s rights, the petition alleging changed circumstances shall be liberally construed to afford the patient the greatest chance to challenge the sufficiency of the evidence. To uphold the import of the CARE/AOT/LPS act, the mental health court in considering the sufficiency of the evidence and totality of the circumstances may rely on declarations to substitute for evidence or allegations missing in the pleading. [citation] To act in the patient’s best interest, the court must see that the evidence proffered demonstrates changed circumstances not changing circumstances. A court order closing a CARE case based only on evidence showing merely changing circumstances would be disastrous as it failed consider the recent psychiatric decompensation, repeated failed efforts to remain compliant, and other factors which had brought the patient within the jurisdiction of the mental health court. If the patient is prematurely discharged and rapidly decompensates again, the court order did not promote stability for the patient or act in the patient’s best interests and by extension adhere to the overruling scheme of the mental health/LPS act. Again, we must be reminded that (1) the overarching goal of mental health proceedings is to safeguard the welfare of the most severely mentally ill gravely disabled patients and (2) that purpose of any mental health hearing is to determine and protect the patient’s best interests. This shall not be limited to just the initial hearing setting the involuntary treatment order. Drawn from In re Clara B. (1993) 20 Cal.App.4th 988, 999. Citing in part from In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 “It is not enough for a patient to show just a genuine change of circumstances under relevant statute. The patient must show that a change in the prior order or closing of the case would be serve their best interests [of long term stabilization and return to the community]”. This last part will address a contention raised by critiques of CARE court. “If a participant cannot successfully complete a Care Plan, the individual may be referred by the Court for a conservatorship, consistent with current law”. Given current LPS Conservatorship statutes an LPS Conservatorship may only be initiated during an involuntary hold at an LPS designated facility. As everyone knows a 5150 hold is hard enough to get for a loved one let alone a 5250. So I’d propose integrating aspects of the housing conservatorship and Bypass provisions in dependency. Bypass Provisions for Mental Health Citing to both federal and state law, when there are special circumstances where “the rule favoring treatment services is overruled by a legislative assumption that offering services would be an unwise use of governmental resources” (due to patient’s long history of noncompliance, severity of illness, and lack of insight) bypass of outpatient services may be recommended. Drawing from Welf. & Inst. Code, § 361.5(b)(1)–(15); If we were to bypass services akin to Welf & I C § 361.5(b)(1), at the initial CARE/AOT court hearing the health department would need to make a showing by clear and convincing evidence that the patient suffers from a severe mental illness that renders him incapable of utilizing CARE/AOT services. These services may be denied to a patient who is currently gravely disabled as a result of their mental disability and if competent evidence from mental health professionals establishes that the patient is unlikely to with services provided, to be able to adequately care for his or her own basic needs as described under Welf & I C § 5008 (h), the CARE court may bypass and move to establish LPS Conservatorship. Given the restrictive nature of normal LPS Conservatorships, we’d be looking at something akin to a housing conservatorship.
QUICK THOUGHTS ON DEFINITION OF GD
https://krcrtv.com/news/local/could-ab-2020s-lowered-req-for-involuntary-conservatorships-work-health-pro-responds?fbclid=IwAR1KPqy4r5CeG3GhuKOeweE3f4MhEc8o_PqeMo58k3jMuC8VwHEmu4JDsrw My thoughts The quote[s] I'd like to focus on: The LPS Act was a way to protect clients' rights to say you could only be detained in a psychiatric hospital under three conditions: you are a danger to yourself, a danger to others, or gravely disabled. When they created the act, they didn't have the issue with homelessness that is in place now. … “intensive outreach and try to convince them to come to get help, they're not willing to do it because in their head they are so psychotic or delusional”. “The current definition of gravely disabled, according to him, prevents more of these lives from being saved”. I agree that homeless is a large issue but first we need to tackle the issue of getting more people into treatment so that they don’t end up on the streets. For the most severely ill with no insight, housing will make too little of a difference. If a psychotic person believes that their food or water is poisoned, they will move or flee from their assisted housing. If they believe that the government is out to hurt them or “rob” them of their benefits via programs, they will flee and go into hiding. I’ve been on the streets long enough to know friends and others that this is common among the most severely ill persons. Take a “famous” person Nathan Ayers who was offered housing and programs and refused them as he preferred to be on the streets and feared that others were out to get him and that these “housing” safety nets were not safe. It took involuntary treatment and a conservatorship to get him compliant and stable with treatment. These indicate that the problem is with the defining laws of the LPS system. If you want more people to get treatment via proving grave disability, we need to change the definition of GD. According to colleagues who I know they say that is one of the biggest barriers to treatment right now. The main issue with this is we would have to overcome stare decisis which has decided that the statutory definition is not unconstitutionally vague or overbroad. Conservatorship of Chambers (1977) 71 CA3d 277; Doe v Gallinot (CD Cal 1979) 486 F Supp 983, 991 To overcome this, we either need a new senate bill or an appeal that shows that the statute in question is so vague that any person of common intelligence must guess at its meaning and to its application. This “guessing” violates the first essential of due process of law”. Connally v. General Const. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S.Ct. 126. At this point in 2022 many mental health professionals will contend that GD as it’s presently defined, is so vague and unclear that many counties end up implementing it differently. Personally, I’d like to direct everyone to look at all of the case law we have surrounding GD: Conservatorship of Guerrero (1999) 69 CA4th 442 Conservatorship of Walker (1989) 206 CA3d 1572. Conservatorship of Benvenuto (1986) 180 CA3d 1030 Conservatorship of Murphy (1982) 134 CA3d 15 Conservatorship of Carol K. (2010) 188 CA4th 123 Conservatorship of Jesse G. (2016) 248 CA4th 453. Conservatorship of Early (1983) 35 C3d 244 Conservatorship of Neal (1987) 190 CA3d 685 Based on these I'd like to say that all of these cases and more, indicate that we need a new redrafting of GD definition and codify it so its uniform for all counties as AB 2853 intends to do. By codifying GD to include other criteria such as anosognosia, inability or unwillingness to accept third party assistance, the issue of not being able to enforce treatment because of conflicting case law or lack of horizontal stare decisis may be bypassed and more people treated. However, in my opinion we would then need training for hospital clinicians, CLEs for lawyers, and other trainings for MH professionals so that they learn that these criteria are no longer optional when assessing someone for GD. However, without a bill or case law that disproves or abrogates Conservatorship of Roulet(1979) 23 C3d 219, we shall still have issues with overcoming the very high burden of proof beyond a reasonable doubt needed for LPS Conservatorship. And there is a high chance that the public guardian may be unwilling to file for LPS Conservatorship as they believe that the evidence before them is not enough to over that standard of proof despite all the evidence “parents and caregivers” may present before them. |
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Juvenile Dependency and
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